spects to the requirements of the regulations. Opinion of July 10, 1838, 3 Op. 337.

277. The act only authorized the accounting officers to allow and credit with extra

entific duties in the late surveying and exploring expedition to the Pacific Ocean and South Seas. Ibid.

270. The construction put upon the act of March 3, 1835, chap. 27, allowing 10 cents a mile to naval officers who may be required to travel upon the public service, confining such allowance to traveling in this country, regarded as res judicata; yet it is an interpolation not exactly warranted by the letter of the statute. Opinion of Oct. 19, 1842, 4 Op. 95.

271. The rendering of "may" for "shall," and the "10 cents" per mile treated as the maximum only, &c., recommended. Ibid.

272. Public officers are entitled to the pay and emoluments appertaining to their offices only from the time they enter upon the performance of their duties. The performance of duties, or the condition requisite to the legal ability to perform them, is the equity upon which salaries are predicated. Opinion of Nov. 29, 1842, 4 Op. 123.

278. The only extra compensation justly claimable by him is such as was allowed to officers of the Navy of equal grade with those employed in the Coast Survey. Ibid.

279. A dismissed midshipman, restored to service from the date of dismission, is not entitled to pay whilst out of the service, and not legally competent to perform duty by reason of permanent suspension. Opinion of April 15, 1844, 4 Op. 318.

280. The effect of a sentence of a courtmartial suspending for three years, upon halfpay, a lieutenant of the Marine Corps, and ordering a reprimand by the Secretary of the Navy, is to suspend half the officer's pay from the date of the confirmation of the sentence forward during the term of three years. Until the confirmation he is entitled to receive full pay, as before trial. The authority of a naval court-martial to affect by its sentence the pay of any officer subject to its jurisdiction is conferred by the act of April 23, 1800, chap. 33. Opinion of April 29, 1844, 4Op. 323.

281. The provision that officers or persons in public employ whose salaries are fixed by

274. A captain of the Navy, appointed as chief of the Bureau of Construction, can only receive the salary fixed by the act of August 31, 1842, chap. 286, and not the pay of a captain on duty, under the act of March 3, 1835, chap 27. Opinion of May 27, 1843, 4 Op. 181. 275. The service of pursers must be continuous under the same commission to entitle them to the progressive rise in pay and rations prescribed by the act of August 26, 1842, chap. 206. Opinion of Aug. 7, 1843, 4 Op. 215.

276. Lieutenant Wilkes, who commanded the exploring expedition, does not come within the provisions of the appropriation act of March 3, 1843, chap. 100, and is not entitled to such a rate of extra pay as will make his annual compensation equal to that of the Superintendent of the Coast Survey. Opinion of Aug. 21, 1843, 4 Op. 235.

except for traveling, for the performance of duties at a distance from their stations or domiciles applies to the officers of the Navy as well as to other public officers. Opinion of Oct. 18, 1844, 4 Op. 342.

282. It is doubtful if a case can be presented in which an officer whose salary is fixed by law can be entitled to an extra compensation for the discharge of a public service. Ibid.

283. An officer in the Navy receiving an antedated commission is not entitled to pay from such antedate. Opinion of Nov. 8, 1844, 4 Op. 348.

284. The purser attached to the war steamer Missouri is entitled to the same rate of compensation as pursers of frigates of the same rate. Opinion of May 30, 1845, 4 Op. 387.

285. War steamers of the tonnage, spars, rigging, and armament of frigates, and rated as such by the Department, may be regarded as frigates for the purpose of determining the

compensation to which the pursers thereof are entitled. Ibid.

286. If, however, it be found that this construction of the law produces any embarrassment in the outfit or allowances of steam-vessels, it may be obviated by a regulation arranging all the vessels of war using steam power into two classes. Ibid.

287. A surgeon in the Navy, who was dismissed from the service by the President in 1829, and renominated and confirmed, with the condition that such appointment should take effect from the date of the ineffectual confirmation; and who was again, in 1842, renominated to the same office, to take rank from the date of his original commission, is not entitled to back pay for the time intervening between his dismission and his restoration, Opinion of July 14, 1847, 4 Op. 603.

288. An antedated commission, when issued for the purpose of restoring an officer out of service to the rank which he would have held had he remained in it, does not carry with it the right to pay for services not only unperformed, but which he was incompetent to perform. Ibid.

289. A professor of mathematics in the Navy who may have been required to perform certain duties at the depot of charts and nautical instruments, and who at the time was superintendent of meteorological observations, by appointment of the Secretary of War, at a salary of $2,000, is not entitled at the same time to the salary of a professor of mathematics under the act of 3d March, 1835, chap. 27. The salary provided by that act is due only to professors when attached to vessels for sea service, or in a yard. Opinion of Sept. 2, 1850, 5 Op.

250.

290. But he is entitled to a reasonable compensation over and above his salary in the War Department for services performed in the depot of charts and nautical instruments. Ibid. 291. Lieutenants commanding naval steamships, built for the transportation of mails, under act of March 3, 1847, chap. 62, are in the service of the United States, and entitled to a salary of $1,800 per annum as lieutenants commanding in the Navy. Opinion of Oct. 25, 1851, 5 Op. 404.

292. By the remedial act of March 3, 1843, chap. 100, Lieutenant Wilkes, as superintendent of the exploring expedition to the Pacific

Ocean and South Seas, is entitled to an extra compensation, equal to the pay allowed the Superintendent of the Coast Survey, for the period from March 22, 1838, to June 22, 1842. Opinion of Aug. 4, 1852, 5 Op. 591.

293. By successive acts of Congress, engineers and certain other officers of the Navy are to be examined for promotion, and if one of them be absent on duty at the time of the examination of his class, he shall, when examined and passed, take rank with the rest as if examined at the same time: Held that retroactive pay does not as of course follow the ascription of retroactive rank. Opinion of July 1, 1853, 6 Op. 68.

294. The salary of the chief of the Bureau of Construction in the Navy Department, as such, is $3,000, though $3,500 is allowable to a captain of the Navy when he holds the office, the latter sum being provided in this case only as a limitation of his pay in the Navy. Opinion of Oct. 18, 1853, 6 Op. 169.

295. The time when the increased pay allowed by act of Congress to Lieutenant Gillis as superintendent of the astronomical expedition to Chili shall cease, not being definitely prescribed by act of Congress, depends on the discretion of the Secretary of the Navy. Opinion of Nov. 19, 1853, 6 Op. 223.

296. An officer of the Navy becoming disabled from service, but not in the line of his duty, was permitted to retain his commission as an officer not under orders for actual service, and received as such half-pay during twentyseven years of total disability: Held that the sum thus allowed is the utmost which could be lawfully paid to the party, and that his administrator has no right to demand arrears of full pay in the case. Opinion of March 14, 1854, 6 Op. 372.

297. Construction of the act of February 28, 1855, chap. 127, in respect of the pay of officers of the Navy promoted into vacancies occasioned by the retirement of their senior officers under that act. Opinion of Feb. 14, 1856, 7 Op. 640.

298. The duty-pay of naval surgeons under the act of June 1, 1860, chap. 67, begins when they enter on duty. Opinion of Aug. 13, 1861, 10 Op. 97.

299. The act of August 3, 1848, chap. 121, fixing the time from which the pay of naval surgeons on the graduated scale should begin, is repealed by the act of June 1, 1860, chap.

67, and in graduating the pay of a surgeon in the Navy the time is to be computed from the date of his commission. Opinion of Aug. 19, 1861, 10 Op. 101.

300. A midshipman appointed acting master under the act of July 24, 1861, chap. 13, | is entitled to the pay of that grade. Opinion of Sept. 4, 1861, 10 Op. 111.

301. A paymaster in the Navy, retired under the act of December 21, 1861, chap. 1, and subsequently employed in active sea-service, is entitled to the proper "sea-pay" of his grade during the time of such employment. Opinion of June 18, 1862, 10 Op. 286.

302. The annual pay of a chaplain in the Navy is that of a lieutenant. Opinion of Sept. 4, 1862, 10 Op. 332.

303. A commander on the retired list in active service is entitled to the pay of his rank on the active list during that service. Ibid.

304. Officers on the retired list of the Navy prior to the act of August 3, 1861, chap. 42, who have received promotion on that list, are entitled to the pay of their new grade under the act of July 16, 1862, chap. 183, notwithstanding the prohibition in the fourth section of the act of January 16, 1857, chap. 12. Opinion of Sept. 5, 1862, 10 Op. 335.

305. A rear-admiral appointed to the office of chief of the Bureau of Yards and Docks, under the act of July 5, 1862, chap. 134, is not bound to accept the salary provided by that act, but may demand the pay allowed to a rear-admiral performing shore-duty by the act of July 16, 1862, chap. 183. Opinion of Nov. 17, 1862, 10 Op. 377.

306. The pay of the Vice-Admiral of the Navy while acting as superintendent of the naval school is at the rate allowed him for services at sea by the act of December 21, 1864, chap. 6. Opinion of Nov. 5, 1866, 12 Op. 81.

307. The act of June 1, 1860, chap. 67, to regulate the pay of the Navy, does not repeal the act of March 3, 1853, chap. 102, providing specially for the pay of a purser doing duty at the naval station of California. Opinion of June 15, 1868, 12 Op. 417.

308. After the passage of the act of June 1, 1860, chap. 67, a purser in the Navy, on duty in a receiving-ship at the naval station in California, could only receive the compensation

authorized by that act. Opinion of Nov. 3, 1869, 13 Op. 170.

309. Under the laws previously in force, by which the pay of a purser on duty at the naval station or navy-yard at California must be determined, but one purser could lawfully be attached to that station on general or special duty, or do duty at that navy-yard, so as to be entitled to the pay fixed by those laws for that service, unless he were a purser of the Navy appointed inspector of provisions, clothing, and small-stores at that yard; and a purser doing duty in a receiving-ship stationed at or near a navy-yard or station is not to be regarded as a person on duty at or attached to such navy-yard or station. Review of the various statutes relating to the subject. Ibid.

310. The provision of the seventh section of the act of July 15, 1870, chap. 295, declaring that thereafter "the increased pay of a promoted officer [of the Navy] shall commence from the date he is to take rank, as stated in his commission," applied to such advancement or promotion in rank, and such only, as entitled the officer advanced or promoted to an increase of pay over what he got at the time his advancement or promotion actually transpired; the words "increased pay" in that provision being used relatively to the pay he then received. Opinion of March 18, 1875, 14 Op.

547.

311. Hence, where B., a paymaster in the Navy, was on the 17th of February, 1871, advanced fifteen numbers in his own grade, under the act of January 24, 1865, chap. 19, and re-. ceived a new commission, by which he took rank as a paymaster from October 20, 1864, the commission held by him at the time of his advancement giving him rank as paymaster only from May 4, 1866, between which date and October 20, 1864, he had served and been paid as an assistant paymaster: Held that the case did not come within the above-mentioned provision, the advancement of B. not involving any increase of pay over what was received by him at the time it happened; and that, accordingly, a claim made by him under that provision for the difference between the pay of an assistant paymaster and the pay of a paymaster for the period between October 20, 1864, and May 4, 1866, is inadmissible. Ibid.

312. B., a retired naval officer, was dismissed

from the Navy, by order of the Executive, on the 30th of December, 1865. In May, 1876, upon his application for trial by court-martial, made under section 12 of the act of March 3, 1865, chap. 79, a court was awarded, which, in June, 1876, pronounced him innocent of every charge and specification, and, the dismissal being thereby annulled, he was ordered (June 5, 1876) to be restored to the retired list. Between the date of his dismissal and the date of his restoration he had not demanded in writing from the Secretary of the Navy as often as once in six months a trial; but pay is claimed by him for this period: Held that the right of the claimant to pay is governed by section 2 of the act of June 22, 1874, chap. 392, under the provisions of which he is not entitled to more than "pay as on leave for six months" from date of dismissal. Opinion of July 21, 1876, 15 Op. 569.

313. It was competent to Congress to modify, in the matter of pay, the effect of a restoration under the act of 1865. Ibid.

314. Officers and men in the naval service do not incur any forfeiture or loss of pay by confinement or suspension from duty under sentence of a court-martial, unless the forfeiture or loss be imposed by the sentence. Opinion of Nov. 9, 1876, 15 Op. 175.

315. In September, 1871, R., a paymaster in the Navy, was retired on furlough-pay, under section 23 of the act of August 3, 1861, chap. 42, and was thereupon allowed, under section 5 of the act of July 15, 1870, chap. 295, onehalf of the highest pay of his grade. In May, 1876, he was transferred (under section 1594 Rev. Stat.) from the furlough to the retiredpay list. By section 1593 Rev. Stat. officers retired on furlough-pay are entitled to only one-half of leave-of-absence pay, and by section 1588 Rev. Stat. general provision is made fixing the pay of retired officers who do not fall under special provisions in that and other sections: Held that after the Revised Statutes took effect R. was entitled to receive only the pay provided by section 1593, and remained so entitled until the date of his transfer, when he became entitled to receive the pay provided by section 1588. Opinion of June 18, 1877, 15

Op. 317.

316. Sections 1588, 1590, and 1593 Rev. Stat., which contain provisions both of a general and special character prescribing the com

pensation of retired naval officers, and embrace within their scope all such officers, whether of the line or staff, superseded all provisions in force at the adoption of the Revised Statutes by which that compensation was previously regulated, and those sections thereafter furnished the only law upon the subject. Ibid.

317. The retirement of R., and allowance to him of compensation under the act of July 15, 1870, prior to the adoption of the Revised Statutes, did not give rise to a right in his favor, "accruing or accrued," which is protected by the saving provision of section 5597 Rev. Stat. Ibid.

318. Where a naval officer is transferred, under section 1594 Rev. Stat., from the furlough list to the retired-pay list, the causes for his retirement determine the rate of pay to which he is entitled under section 1588 Rev. Stat. An officer retired on furlough-pay from causes not incident to the service cannot, by the action of the Executive, be transferred to the 75 per centum retired-pay list provided for by the last-mentioned section. Opinion of May 29, 1878, 16 Op. 22.

V. Officers, &c., in the Marine Corps.

319. The marine officers who were reduced under section 4 of the act of March 2, 1847, chap. 40, and restored under the naval appropriation act subsequently passed, are not entitled to pay during the interval. Opinion of May 14, 1849, 5 Op. 101.

320. Brevet officers of the Marine Corps are entitled to the same pay and emoluments which are allowed to officers of similar grades in the infantry of the Army. Opinion of Feb. 19, 1852, 5 Op. 513.

VI. Counsel Employed by Head of Department.

321. Counsel specially employed by the Secretary of State to aid the district attorney in the prosecution of persons accused of being engaged in illegal military enterprises in Texas should be paid out of the funds of the State Department. Opinion of March 9, 1854, 6 Op.

355.

322. The act of February 26, 1853, chap. 80, regulates the amount of compensation payable to counsel employed by the head of a Department by the agreement between the Depart

323. In forming his judgment the head of a Department may submit the question to the President and adopt his opinion as to the proper sum to be allowed. Ibid.

324. When such a submission is made, and the head of the Department offers to pay the sum fixed by the President, and no more, he adopts as his own judgment the opinion of the President. Ibid.

325. The matter cannot be reopened by a succeeding head of the Department after it has been thus adjudicated by his predecessor. Ibid.

326. The fees of such special counsel are not chargeable to the judiciary fund. Opinion of May 9, 1861, 10 Op. 48.

327. The amount of such fees is a matter entirely for the determination of the head of the Department by whom the counsel is retained, and not for the decision of the Attorney-General. Ibid.

328. Counsel specially retained for professional services in a matter arising in the business of any of the Departments are paid from appropriate funds in charge of the particular Department at the order of which the services were performed. Opinion of May 13, 1861, 10 Op. 41.

329. In the case of an account for professional services in the investigation of the title to land purchased by the Government, presented by counsel employed to examine and give an opinion on the title, the proper criterion for determining, in the absence of express contract, the reasonableness of the account is the charge made in cases of like magnitude by lawyers of ability and reputation, or, if no such cases have occurred, the amount which lawyers of learning, ability, and reputation, equal to the duty, would charge for similar services. Opinion of Sept. 12, 1865, 11 Op.

349.

330. Claim of the counsel employed by the United States in the matter of the extradition of the "Saint Albans raiders," for professional services, considered. Opinion of Oct. 2, 1865, 11 Op. 360.

331. The matter of fees of counsel in the employ of a Department is under the exclusive control of the head of the Department employ

Op. 401.

332. The Secretary of War has the right to employ and pay special counsel to examine the title to lands purchased under the direction of his Department. Opinion of June 12, 1868, 12 Op. 416.

VII. Where Officer Holds more than One Office.

333. A person who holds both of the offices of clerk of a district court and clerk of a circuit court is entitled to the maximum allowance for each of them. Opinion of Nov. 2, 1858, 9 Op. 250.

334. An officer who has been appointed to and is fully invested with two distinct offices may receive the compensation appropriated for each. Sections 1763, 1764, and 1765 Rev. Stat. do not apply to such a case. Opinion of May 9, 1878, 16 Op. 7.

VIII. Extra Pay.

335. The proviso of the act of 3d March, 1835, chap. 26, prohibiting the payment of percentage to officers of the Army for any service or duty unless authorized by law, is a permanent provision, and cannot be avoided except by an express enactment; wherefore a commission cannot now be allowed to a paymaster on moneys paid out by him to the militia and volunteers serving in Florida. Opinion of Oct. 24, 1836, 3 Op. 153.

336. The clerk of the Navy and privateer pension and Navy hospital funds is entitled, over and above his salary, to a fair compensation for services performed by him in respect to the United States Coast Survey, as those services were no part of his official duty. Opinion of June 10, 1837, 3 Op. 245.

337. Clerks whose ordinary duties are prescribed by law, or by the head of the Bureau in which they are employed under the authority of law, who perform services additional to those which are in their line of ordinary duty, are equitably entitled to a just compensation therefor. Opinion of April 6, 1838, 3 Op. 324.

338. Clerks in the Fourth Auditor's Office are entitled to a fair compensation for services performed by them in relation to the Navy pension and Navy hospital funds, provided those services are not within the range of the powers